San Diego vs. Washington: NSA rulings at odds

In this post-Snowden era, two federal judges, one here in San Diego and another in Washington, D.C., have ruled on the legality of the National Security Agency’s warrantless collection of what lawyers call “telephony metadata.” (Phone logs to you and me.)

Judge Richard J. Leon of Washington recently ruled in a civil case that the sweeping up of phone logs would leave James Madison, a liberty-loving slaveholder, “aghast.”

A month ago, however, Judge Jeffrey Miller sentenced four Somali men to prison for raising money for al-Shabab, a terrorist group. NSA phone records, FBI officials have revealed, played a key role in the prosecution.

The men’s attorneys argued in furious legal detail that the case should be thrown out because the NSA evidence was obtained in violation of the Fourth Amendment.

During the trial, Miller, a well-respected San Diego judge who’s handled high-profile cases (remember Strippergate?), had been briefed on top-secret court proceedings and was not, by all appearances, left aghast.

In his denial of the motion to dismiss, Miller invoked a continuum of legal precedent, rejecting Leonine fears of an Orwellian state in a new digital world order.

Miller disputed that the NSA surveillance method is legally distinct from a 1978 Maryland case in which police asked a phone company to employ a “pen register” to log the calls from a criminal suspect.

Third-party record-keeping is more than 150 years old, Miller wrote, and “cannot be considered a product of the digital revolution.”

Trackless electronic communication? No such thing.

In a charming display of erudition, Miller cited Samuel Morse’s “Improvement in the Mode of Communication Information by Signals by the Application of Electro-Magnetism” (1840) to support his point that the logging of transactions is intrinsic to modern communication.

The warrantless retrieval of phone data is not a “search” forbidden by the Fourth Amendment, Miller reasoned. In his legal logic, raw data sweeps do not violate an expected zone of privacy akin to police planting a GPS device on a car.

Ultimately, as Sen. Dianne Feinstein has surmised, the Supreme Court could rule on the NSA’s use of telephony metadata. (A presidential panel has recommended restricting NSA access to logs, a possible political, if not a constitutional, fix.)

It will be supremely interesting to see which of these two rulings — Leon’s or Miller’s — winds up on the right side of history.

It’s an open question if phone sweeps are effective in foiling terrorists, but unlike Leon, Miller appears confident they’re permissible under current law.